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2011 DIGILAW 392 (JK)

Sajad Bhat Bhat v. State of J&K and others

2011-08-02

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge to order No. 163/DMB/PSA/10 dated 20.12.2010, of District Magistrate, Baramulla respondent No. 2 herein, whereby one Shri Sajad Ahmad Bhat son of Bashir Ahmad Bhat resident of Botingoo Tehsil Sopore District Baramulla (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: 1. The respondent No. 2 has intriguingly mentioned that "on the basis of grounds of detention placed before me (him)", the detenue is placed under preventive detention from acting in any manner prejudicial to the security of the State. The Detaining Authority may get inputs from different agencies including Superintendent of Police of the concerned District. Responsibility to formulate grounds of detention, however, rests with the Detaining Authority. It is Detaining Authority, who has to go through the reports and other inputs received by him from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that the subject is to be placed under preventive detention. It is thus for the Detaining Authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of preventive detention. The detention order, for the said reasons, exhibits total non-application of mind by the detaining authority. The detention order is liable to be quashed on this ground alone. 2. The grounds of detention make reference to case - FIR No. 559/2010 under section 7/ 25 A. Act, to have been registered against detenue. The involvement of detenue in the aforementioned case appears to have heavily weighed with detaining authority while making detention order. The detention record as also counter affidavit do not indicate that copies of aforementioned First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenue. It is pertinent to point out that the detaining authority in grounds of detention, after detailing background, in which aforesaid case was registered against detenue, proceeds to opine "It is manifest from factual position as at prepares (pre paras) that your activities are highly prejudicial to the maintenance of public order".. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The respondents, in their counter affidavit, have not controverted the plea that the said material was not furnished to detenue. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The respondents, in their counter affidavit, have not controverted the plea that the said material was not furnished to detenue. The detention record as also counter affidavit reveal that none of the documents referred to in the detention order was supplied to the detenue. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince Detaining Authority and thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. The failure on the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, I draw support from Dhannajoy Dass versus District Magistrate ( AIR 1982 SC 1315 ); Sofia Ghulam Mohammad Bam versus State of Maharashtra and Others ( AIR 1999 SC 3051 ); Union of India versus Ranu Bhandari ( 2008 Cri. L. J. 4567); Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (2009 (I) S.L.J. 219); and Tahir Haris versus State and Others ( AIR 2009 SC 2184 ). 3. Article 22(5) of Constitution provides a precious and valuable right to a person detained under preventive detention law - J&K Public Safety Act 1978, to make a representation against his detention. It needs no emphasis that a detenue, on whom preventive detention order is slapped, is held in custody without a formal charge and a trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order. Article 22(5), Constitution of India and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenue an earliest opportunity of making an effective and meaningful representation against his detention. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order. Article 22(5), Constitution of India and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenue an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable detenue to convince Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenue meaningful, it is necessary that detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention. In the instant case the detenue is alleged to be associated with 'HM' outfit. The word/expression like 'HM', is too vague to make the detenue aware of the exact accusation leveled against him. The detaining authority has not to work on assumptions and presumptions that whatever acronyms it is aware of must be necessarily known to the detenue. The reference to the activities of "HM outfit" is rendered meaningless in view of non-description of organization with which the detenue is alleged to be associated. It is also alleged that some arms/ammunition were recovered from the detenue. There is nothing on record to suggest that the seizure memo, vide which the alleged recoveries were made, were ever supplied to the detenue. The counter affidavit as also detention record do not reveal that the detenue is furnished the necessary details of occurrences/events attributed to him. The detenue, in absence of such details, could not be expected to have been in a position to give his side of story and persuade the respondent No. 2 and other respondents that the allegations against the detenue were bereft of any basis. To sum up, the grounds of detention that constitute basis for the detention order in question are ambiguous, vague, uncertain and hazy. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the respondent No. 2. To sum up, the grounds of detention that constitute basis for the detention order in question are ambiguous, vague, uncertain and hazy. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the respondent No. 2. The detenue has been kept guessing about the facts and events that weighed with the respondent No. 2 and prompted the respondent No. 2 to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of the detenue. These are only few instances to illustrate that the grounds of detention are vague and ambiguous and bound to keep the detenue guessing about what really was intended to be conveyed by the detaining authority. It is well settled law that even where one of the grounds relied upon by the Detaining Authority to order detention is vague and ambiguous, Constitutional and Statutory right of the detenue to make a representation against his detention are taken to have been violated. Reference in this regard may be made to Dr. Ram Krishan Versus The State of Delhi and others, AIR, 1953,; Chaju Ram Versus State of J&K, AIR 1971 SC 263 ; Mohd Yousuf Rather Versus State of J&K, AIR 1979 SC 1925 ; and Syed Aasiya Indrabi Versus State of J&K and others, 2009 (I) SLJ 219. 4. The detaining authority did not inform the detenue that the detenue independent of his right to file representation against his detention, to the government, has also right to submit a representation to the detaining authority till his detention was considered by the government and approved. The detaining authority, respondent No. 2, has in effect violated constitutional and statutory rights of the detenue guaranteed under Article 22(5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act. Reference in this regard may be made to the law laid down in State of Maharashtra and Others versus Santosh Shankar Acharya, AIR 2000 SC 2504 . 2. Viewed thus, the petition is allowed and detention order No. 163/DMB/PSA/10 dated 20.12.2010, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Sajad Ahmad Bhat son of Bashir Ahmad Bhat resident of Botingoo Tehsil Sopore District Baramulla, quashed. 3. 2. Viewed thus, the petition is allowed and detention order No. 163/DMB/PSA/10 dated 20.12.2010, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Sajad Ahmad Bhat son of Bashir Ahmad Bhat resident of Botingoo Tehsil Sopore District Baramulla, quashed. 3. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. 163/DMB/PSA/10 dated 20.12.2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 163/DMB/PSA/10 dated 20.12.2010. 4. Detention record be returned to the counsel for respondents. 5. Disposed of.